Atapattu, R. (On the Application of) v The Secretary of State for the Home Department

After an immigration appeal has been allowed, the decision-maker must consider any re-submitted entry-clearance application within a reasonable time, follow its published guidance unless there is good reason to depart, and either grant or refuse the application while returning the passport. Prolonged silence and retention after an unconditional demand may amount to conversion. A breach of public law does not, without more, create a common-law duty of care in exercising immigration powers. Article 8 does not confer a right to a chosen occupation or to advance within it merely by obtaining further qualifications. A passport is not a possession under Article 1 of Protocol 1 where the claim relies on an unmarketable entitlement to work or travel.

The claimant sought damages for the Secretary of State’s failure to deal with his re-submitted application for entry clearance and for retaining his Sri Lankan passport. The application followed two refusals in 2008 and an Asylum and Immigration Tribunal decision in June 2009 allowing his appeal under the immigration rules and Article 8.

After the claimant submitted his passport and the appeal letter in January 2010, the Defendant neither granted or refused entry clearance nor returned the passport until proceedings were commenced. Permission for the visa and passport claims was refused after an undertaking was given, but the damages claim proceeded. The central issues were conversion, negligence, Article 8, and Article 1 of Protocol 1. Liability was decided separately from quantum and possible causation issues.

The single judgment held as follows.

1. Following an allowed immigration appeal without a direction under section 87 of the Nationality Immigration and Asylum Act 2002, there was no absolute statutory duty to grant entry clearance. The appeal nevertheless provided the framework for reconsideration. The Defendant had to consider the re-submitted application within a reasonable time, apply the Entry Clearance Guidance unless there was good reason to depart, and either grant or refuse the application while returning the passport. The unexplained failure to act was a breach of public law.
2. For conversion by wrongful retention, the claimant needed an immediate right to possession and an unconditional demand. The demand was to be assessed objectively in its factual context. It need not be expressed in technical language. The claimant’s May and June letters amounted to unconditional demands for return of the passport.
3. Conversion by keeping required deliberate withholding or interference. A refusal had to be clear or unequivocal, but it could be inferred from silence, inaction, or unreasonable delay. The Defendant’s failure for more than three months to respond to the demands amounted to an unequivocal refusal. Liability for conversion arose from 19 May 2010 under the Torts (Interference with Goods) Act 1977.
4. No common-law duty of care arose in relation to the delayed visa application. A breach of public law in exercising a statutory power did not itself create liability in negligence. The first two Caparo requirements were accepted, but it was not fair, just and reasonable to impose a duty. The availability of the Parliamentary Ombudsman, absence of voluntary assumption of responsibility, and the fact that the alleged failure was administrative were important considerations.
5. The Article 8 claim failed at the engagement stage. Article 8 did not protect a right to work or to choose and pursue a particular profession. The inability to obtain an additional qualification within an existing career path did not, without broader effects on private life or personal relationships, constitute a sufficiently substantial interference. The Article 1 Protocol 1 claim also failed: the passport and ungranted visa were not possessions, and future earnings were not possessions.

The claimant was entitled in principle to damages for conversion, subject to proof of loss. The negligence and Human Rights Act claims were dismissed. Quantum, and potentially causation, remained for later determination.

The judgment records the following procedural history.

1. Asylum and Immigration Tribunal: allowed the claimant’s appeal against the 2008 entry-clearance refusals under the immigration rules and Article 8 in a determination promulgated on 22 June 2009.
2. High Court (Administrative Court): after the Defendant undertook to issue a student visa and return the passport, the court determined liability for damages. It found conversion established, but dismissed the negligence and Human Rights Act claims.